R.C. v. Ontario (Education), 2014 HRTO 999

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.C.

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Minister of Education

Respondent

DECISION

Adjudicator: Mark Hart Date: July 8, 2014 Citation: 2014 HRTO 999 Indexed as: R.C. v. Ontario (Education)

APPEARANCES

R.C., Applicant Self-represented

Her Majesty the Queen in right of Ontario as represented by the Minister of Education, Respondent Padraic Ryan, Robert Charney, Michael Riley and Danna Brown, Counsel

Introduction

1This is an Application dated November 3, 2013 alleging discrimination with respect to services because of creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant's name has been anonymized in this decision given that he brought an earlier application (discussed below) on behalf of his minor daughter.

2In brief, the applicant alleges that the respondent violated the Code in three respects: (1) by failing to take steps to inquire into and address potential discrimination because of creed that may be occurring at school boards across Ontario; (2) by maintaining the Protestant Separate School Board of the Town of Penetanguishene; and (3) by failing to take steps to address alleged ongoing discrimination because of creed at the District School Board of Niagara.

3By Case Assessment Direction dated February 5, 2014, the Tribunal granted the respondent's request for a summary hearing to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

4The summary hearing was held by teleconference on May 13, 2014, at which I heard oral submissions from the parties.

BACKGROUND

5In 2010, an Application was filed with this Tribunal against the District School Board of Niagara arising out of a school board policy at the time of allowing the Gideons International In Canada to distribute their version of the New Testament to grade five students, if the principal in consultation with the school council agreed. The Gideons were the only religious group permitted to do so. Parental consent forms were distributed to the class, and the distribution to students whose parents had agreed took place outside class time.

6The applicants in that case identify as atheist, and challenged this school board policy on the basis that it discriminated against them on the basis of creed. After the events in question, the school board changed its policy to allow other religious organizations to also distribute religious texts in schools in certain circumstances, although no materials other than the Gideon Bible had been distributed.

7In its Decision dated August 13, 2013 (2013 HRTO 1382), the Tribunal held that discrimination because a person is atheist falls within the definition of "creed" in the Code, that the school board discriminated against the applicants through its policy permitting only the Gideons to distribute religious literature in schools, and that the school board's new policy did not comply with the Code. The Tribunal was clear in its Decision that the Code does not require that public schools be free of optional religious activities outside classroom hours, so long as all creeds are treated with substantive equality. The Tribunal ordered the school board not to permit the distribution of religious publications in its schools, unless it developed a new policy consistent with the Code.

8The Crown in right of Ontario was not named as a party to the 2010 Application and did not participate in the Tribunal proceeding. While this prior proceeding was ongoing, the applicant wrote to the Ministry of Education on April 11, 2010, to advise that the matter was before this Tribunal and to ask to speak to someone at the Ministry about the issue. By letter dated May 10, 2010, a Ministry of Education representative replied to the applicant to advise that, as the issues were being reviewed by this Tribunal, it would not be appropriate for the Ministry to provide comment on the issues raised.

9On September 19, 2013, after the Tribunal's decision was released, the applicant wrote a letter to the Minister of Education to advise her of the decision and to alert the Minister to similar potential discrimination by other school boards in Ontario. The applicant stated that it would be prudent for the Minister to canvass the public school boards to determine whether any of them continue to allow distribution of the Gideon Bible or other religious materials and, for those that do, to have them review their policies. The applicant specifically requested that the Ministry of Education provide him with a list of all public school boards indicating whether or not each school board was involved in the Gideons distribution program.

10The applicant's letter also raised other ongoing issues with the District School Board of Niagara, including the existence of Eden High School, which is alleged to be a fully-funded Christian school operated by the public school board, and the school board's ongoing involvement with what are alleged to be Christian missionary organizations. The applicant requested that the Ministry take immediate action to remedy this situation.

11A representative from the Ministry of Education responded by letter dated October 7, 2013 to state that school boards are independent corporations created under the Education Act, R.S.O. 1990, c. E.2, and are governed by locally-elected trustees who have decision-making authority over school board-specific matters. It was stated that each school board is responsible for operating its schools in conformity with the Education Act and all other applicable law, including the Code. It was stated that the distribution of resources and materials is a matter that is determined by school boards at the local level to reflect local needs and circumstances. The Ministry did not otherwise respond to the applicant's requests.

12This response led to the filing of this Application on November 3, 2013. Of note is that on November 3, 2013, the applicant also filed a new Application against the District School Board of Niagara, in which he raises the further allegations of discrimination because of creed by that school board that he had previously raised with the Minister of Education. In this latter Application, the applicant requested that the Application against the District School Board of Niagara be consolidated with the Application at issue before me. The Application against the District School Board of Niagara is currently proceeding to mediation. It is not necessary for me to address the applicant's request for consolidation.

THE ISSUES BEFORE ME

13The issues before me for the purpose of the summary hearing are threefold: (1) whether the applicant has standing to raise issues relating to school boards other than the District School Board of Niagara; (2) whether s. 19(1) of the Code provides a full defence in relation to the applicant's allegations about the Protestant Separate School Board of the Town of Penetanguishene; and (3) whether the applicant has any reasonable prospect of success of attaching liability to the Crown in right of Ontario ("Ontario") in relation to his allegations of continuing discrimination by the District School Board of Niagara.

14While the respondent also raised an issue of abuse of process on the basis that the applicant was trying to re-litigate the issues that already had been determined by this Tribunal in its prior decision, the applicant made it clear at the hearing that he is not attempting to do so but is raising other issues as identified above. As a result, it is not necessary for me to deal with the abuse of process issue.

(1) Standing

15Section 34(1) of the Code states that a person may apply to the Tribunal if that person "believes that any of his or her rights under Part I have been infringed". As a result, in order to file an application with this Tribunal, there must be a basis upon which the applicant alleges that his or her individual rights have been infringed.

16The only exceptions to this are when the Ontario Human Rights Commission (the "Commission") files an application pursuant to s. 35 of the Code, which requires only that the Commission be of the opinion that it is in the public interest to file the application and that an order from the Tribunal would provide an appropriate remedy, or when a person or organization other than the Commission files an application on behalf of another person under s. 34(5) of the Code with that person's consent, although this latter provision still requires that the person on whose behalf the application is brought allege that her or his individual rights under the Code have been infringed. Neither of these provisions apply in the instant case.

17The applicant essentially alleges that Ontario has an over-arching duty to oversee and govern the conduct of public school boards in the province as a result of the exclusive power granted to Ontario under s. 93 of the Constitution Act, 1867 to make laws in relation to education. As a result, the applicant argues, he has the ability as a taxpayer in the province to challenge Ontario's alleged failure to take appropriate steps to address potential discrimination because of creed that may be ongoing at other school boards across the province. In the absence of any response by the Ministry of Education to his request for information about other school boards who may allow distribution of the Gideon Bible or other religious material in their schools, the applicant states in his oral submissions that he has done his own research and asserts that at least two, and perhaps more, public school boards continue to permit distribution of the Gideon Bible in their schools.

18I will address below, in the context of his allegations about ongoing discrimination at the District School Board of Niagara, the applicant's allegation of an over-arching duty on the part of Ontario to oversee and govern public school boards. In the context of other public school boards in the province, it is my view that the applicant's assertion that his status as a taxpayer gives him the right to challenge Ontario's alleged failure to address potential discrimination because of creed at these other school boards fails on the basis that no individual right of the applicant is engaged by activities that may be occurring at public school boards in areas of the province where he does not reside. It is clear to me that, if the applicant were to have attempted to file an application directly against one of these other public school boards, he would not have the legal standing to do so. In my view, the applicant's attempt to file an application against Ontario arising out of the alleged actions of other public school boards in areas of the province where he does not reside is not capable of giving him any greater legal standing than if he had attempted to file an application directly against one of these other school boards.

19I am fortified in this conclusion by the decision of the Ontario Superior Court in Landau v. Ontario (Attorney General), 2013 ONSC 6152 at paras. 15 to 17, where it is stated that being a taxpayer does not give a person private interest standing:

In her affidavit filed in support of the application, Ms. Landau sets out examples of her "beliefs and opinions" which differ from those of the Catholic Church, including in respect to birth control, abortion, and same sex relationships. She states that "the Ontario Separate Catholic School system teaches and promotes the beliefs and positions of the Catholic church". Thus Ms. Landau concludes that she is "obligated to contribute to the support of a sectarian Catholic separate school system that supports positions and beliefs which [she] oppose[s]".

Being a citizen, resident, taxpayer, does not give someone private interest standing to challenge government action a person believes is unconstitutional. This is trite law. Rather, to have private interest standing, a person must have a direct personal legal interest in the issue. In respect to issues of public policy, to have standing an applicant must show that she is "exceptionally prejudiced" or is "specially interested" in the issue. "Interested" here means having a legal interest, not having one's intellectual passion aroused. Ms Landau has no "special interest" here, nor is she "exceptionally prejudiced" by the funding of Catholic separate schools.

Further, Ms. Landau's emphasis on her status as a "taxpayer" is, in my view, misplaced. "Taxpayers" do not have a privileged position to challenge state action. Those who are too poor to pay taxes do not have less recourse than others. Stay-at-home parents, children and young people who have not yet entered the work force, and the destitute, are not accorded reduced access to the courts because they do not pay taxes.

20Accordingly, I find that the applicant lacks legal standing under s. 34(1) of the Code to bring this Application against Ontario in relation to any duty it may have relating to public school boards other than the District School Board of Niagara, on the basis that the Application does not involve an allegation that the applicant's individual rights under the Code have been infringed.

(2) [Section 19(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec19subsec1_smooth) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

21Section 19(1) of the Code provides as follows:

This Act shall not be construed to adversely affect any right or privilege respecting separate schools enjoyed by separate school boards or their supporters under the Constitution Act, 1867 and the Education Act.

22Section 93(1) of the Constitution Act, 1867 places the following restriction on Ontario's exclusive power to make laws in relation to education:

Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union.

23While in this province, this provision typically has been understood to protect the rights of Catholic denominational schools, this provision is not restricted to Catholic denominational schools but rather extends to any denominational schools which had rights or privileges at the time of Confederation.

24At the time of Confederation, legislation existed called An Act respecting Separate Schools, CSUC 1859, c. 65, which extended certain rights and privileges to Protestants and "colored people", including the right to establish a separate school board if certain conditions were met. In relation to Protestant separate school boards, these rights and privileges have been continued under ss. 158 to 169 of the Education Act.

25The materials before me for the purpose of this hearing indicate that the Protestant Separate School Board of the Town of Penetanguishene was in existence at least as early as 1896. Counsel for Ontario was unable to ascertain whether this school board was in existence at the time of Confederation. But that is no matter. Section 93(1) of the Constitution Act, 1867 does not just protect Protestant separate schools boards in existence at the time of Confederation, but extends to the "rights and privileges" that Protestants had at the time of Confederation with respect to denominational schools. This would include the right to establish a Protestant separate school board by meeting the conditions set out in legislation in existence at the time of Confederation.

26Having been given this rather interesting history lesson by able counsel for Ontario, the applicant conceded that his attempt to challenge the Protestant Separate School Board of the Town of Penetanguishene was precluded by s. 93(1) of the Constitution Act, 1867 and s. 19(1) of the Code, which is the correct conclusion in law.

27As a result, this aspect of the Application also is dismissed.

(3) Ontario's duty to address alleged discrimination

28This leaves us with the applicant's allegations about ongoing discrimination because of creed by the District School Board of Niagara, in the jurisdiction of which the applicant resides. I will not address any issue of standing that may arise in the context of the applicant's ongoing application directly against that school board, and will leave that to be addressed if necessary in the other proceeding.

29The issue I will address here is whether there is a basis in law to assert that Ontario has a duty to take steps to address alleged discrimination by a local school board. In my view, there is not.

30As noted by Ontario, public school boards are independent legal entities, with their own legal personalities and democratic accountability structures. Under the Education Act, the provincial Ministry of Education provides a regulatory framework for the provision of education by local school boards, but does not supervise their operational activities.

31In Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court heard an appeal from a decision of the British Columbia Human Rights Tribunal which had made a finding of discrimination because of disability not only against the local school board but also against the province, on the basis of that province's inadequate funding for special education services. While recognizing that a provincial government could potentially be liable if the funding mechanism it created did not comply with human rights legislation, the Supreme Court held that the connection between the province's funding mechanism and the local board's failure to provide appropriate accommodation to the individual student was "remote" and that the Tribunal's jurisdiction did not extend to conducting what was described as a "Royal Commission" into the provincial funding mechanism. As a result, the orders made by the Tribunal against the province were overturned.

32In E.P. v. Ottawa Catholic School Board, 2009 HRTO 499, a request was made by the applicant to add the Ministry of Education as a respondent to the proceeding in the context of an Application dealing with an alleged failure by the respondent school board to properly accommodate a special needs student. At para. 26 of that decision, the Tribunal states:

In light of the division of responsibility between the Ministry and school boards in Ontario, the Tribunal has declined to add the Ministry as a party to Applications concerning the provision of special education programs and services except in very limited circumstances, such as where the allegation is that the Ministry has not responded to parents' concerns in a timely manner (Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14), or where the allegation, supported by evidence, relates directly to an action or omission within the Ministry's statutory mandate (Davidson v. Lambton Kent District School Board, 2008 HRTO 294).

33In the Sigrist case, above, the Tribunal's decision to add the Ministry of Education as a party respondent was not based upon Ontario's general constitutional authority over education. As stated at para. 18, it cannot be maintained that, "as all school boards are creatures of provincial legislation within the constitutional authority of the province, therefore the province is responsible for each and every action of each and every school board, any more than a province is held responsible for each and every action of a municipality, notwithstanding that municipalities are creatures of provincial statute. Rather, in order to properly ground the potential liability of the province, there must be some alleged act or omission by the province whereby the province caused or contributed to the discrimination experienced by the individual student in violation of the Code."

34On the specific facts of the Sigrist case, the Ministry was alleged to have made available to the applicants' parents the services of a Ministry education officer who was directly involved in dealing with the local school board in relation to the accommodation of the applicants' special needs. Given this direct involvement with the local school board, the Ministry was added as a respondent to address the alleged failure of the Ministry to take more timely action to assist the applicants' parents with their concerns.

35In the Davidson case, above, the Ministry was added as a party respondent only on the basis of an allegation that the Ministry's definitions of "exceptionalities" that were used by local school boards in deciding placements and programs for students with special needs created a discriminatory barrier in the specific context of the disability at issue in that case. As a result, this allegation related directly to an action or omission within the Ministry's statutory mandate.

36These cases all have arisen in the context of a province's direct responsibility in the context of the provision of special education services for students with disabilities, where there is either a statutory or regulatory basis to engage the province's direct potential liability or some alleged act or omission by a provincial education officer in the context of specific services provided by the Ministry of Education to support local school boards.

37I have no material before me to indicate that this kind of direct involvement by Ontario and the Ministry of Education exists in the context of "creed" or what decisions or actions are taken by local school boards in terms of the distribution of religious materials or their involvement with religious organizations. These are the responsibility of the local school boards, not Ontario or the Ministry of Education, and it is the obligation of local school boards, not Ontario or the Ministry of Education, to ensure that their actions conform to the requirements of the Code.

38Section 93 of the Constitution Act, 1867 does not assist the applicant in maintaining his argument against Ontario. This provision only gives Ontario exclusive jurisdiction to "make laws" in relation to education, and does not serve to impose liability on Ontario for the actions of local school boards. By enacting the Code, Ontario has made a law that extends to local school boards and requires them not to engage in discrimination because of creed in respect of the educational services they provide. From that point, it is the responsibility of local school boards to comply with their obligations under the Code.

39Accordingly, I find that there is no proper legal basis upon which this Application can be maintained as against Ontario in relation to the alleged actions of the District School Board of Niagara in maintaining and operating Eden High School or arising out of the local board's involvement with alleged religious organizations, or in respect of any policy a local school board may have regarding the distribution of religious materials in its schools. The proper respondent in relation to a concern of that nature is the local school board, which has been named in and has responded to the companion Application filed by the applicant.

ORDER

40As a result, I find that the applicant does not have a reasonable prospect of success in relation to the allegations he has made against Ontario, and the Application is therefore dismissed.